For a private employers, the Age Discrimination in Employment Act applies only if the employer has 20 or more employees. Smaller private employers are exempt. But what about local governments? Are they all covered? Or only those with 20 or more employees? That is the question raised in Mount Lemmon Fire District v. Guido.

Four federal Circuit courts have said that the 20-employee minimum applies to the political subdivisions of a state – the 6th, 7th, 8th, and 10th Circuits. But there is one Circuit – the 9th – which recently held that the ADEA applies to all political subdivisions of a state, regardless of size. Guido v. Mount Lemmon Fire District (9th Cir 06/19/2017) [PDF].

John Guido and Dennis Rankin were firefighter Captains at the Mount Lemmon Fire District, a political subdivision of the State of Arizona. After they were terminated, they sued claiming a violation of the Age Discrimination in Employment Act (ADEA). The district court granted summary judgment for the Fire District on the ground that it was not an "employer" under the ADEA; the 9th Circuit reversed.

The statute

29 U.S.C. § 630(b):

"The term 'employer' means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year … . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State … ."

Statutory history

As enacted in 1973, the ADEA applied only to private employers. A 1974 amendment extended the ADEA to local governments by adding a second sentence to § 630(b). You can't help but notice that the first sentence contains an express 20-employee minimum, and the second sentence is just plain silent on that point.

The courts

Although four Circuits have held that the 20-employee minimum applies to local governments, all of those Circuits really rely on just one case – Kelly v. Wauconda Park Dist., 801 F.2d 269 (7th Cir. 1986) [PDF]. The Kelly court's reasoning was that (1) the statute is ambiguous, and (2) the legislative history leads to the conclusion that "Congress, in amending section 630(b), merely intended to make it clear that states and their political subdivisions are to be included in the definition of ‘employer,’ as opposed to being a separate definition of employer."

The 9th Circuit decision – which rejected the Kelly analysis – was based on the "plain meaning" of the statute. The 9th Circuit said that the meaning of § 630(b) is not ambiguous, because the 20-employee minimum does not appear in the second sentence.

The 9th Circuit was also highly critical of the manner in which the Kelly court had found ambiguity in the first place. Here is my favorite quote, penned by Circuit Judge Diarmuid F. O’Scannlain:

"The Seventh Circuit in Kelly concluded the statute was ambiguous. While acknowledging that the categorical reading was a reasonable one, it concluded the plaintiff 'weaken[ed] his argument that the statute is unambiguous by arguing that we should look at "common sense" and congressional intent in deciding that the statute is unambiguous.' 801 F.2d at 270. It is not clear to us why an appeal to 'common sense' undermines this argument. Further, any appeal to congressional intent is a non-sequitur; it is not a factor that should affect the determination of whether a statute’s plain meaning is ambiguous. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 391 (2012)."

One must take note of the citation to Scalia & Garner's Reading Law: The Interpretation of Legal Texts. Some critics seem to take the position that reliance on the "plain meaning" of a statute naturally results in decisions that favor employers, and disfavors employees and labor unions. Of course this is not true. Some critics also presuppose that only conservative judges apply the kind of statutory analysis that Judge O’Scannlain used. One need go no further than Digital Realty Trust, Inc. v. Somers (US Supreme Ct 02/21/2018) [PDF] to see that Supreme Court Justices prefer to read statutes the way they were written rather than some way the individual Justice might rather it be written.